How Texas Executed an Innocent Man

In a 2006 case before the U.S. Supreme Court that upheld the death penalty, Justice Antonin Scalia wrote that there has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.”

First, Justice Scalia seems to be employing horse-and-barn-door logic. In order to prevent this horrible thing from happening, we must first let it happen.

Second, guilt and innocence are tricky matters, requiring an entire court system to sort out. The assumption that the sorting has been done correctly, 100 percent of the time, for the entire life of our nation and maybe all nations, seems a trifle naive.

Third: Cameron Todd Willingham.

Does Scalia read The New Yorker—from which the above quote was taken? The Sept. 7 issue has a good long article (“Trial By Fire”) by David Grann on Cameron Todd Willingham, who, in Dec. 1991, watched in horror as his three children were burned to death in their home. A month later he was arrested for arson and manslaughter. He was found guilty and sentenced to death. In Feb. 2004 he was executed by the state of Texas.

Grann employs a Rashomon-style type of reporting. But rather than giving us different people’s perspectives of the same event, he gives us different “general perceptions” of the same event.

The event is the burning to the ground of a one-story wood-frame house, in Corsicana, Texas, on Dec. 23, 1991. Three children died.

The first “general perception” is the immediate one. The wife is away. The father is out front, and frantic, and has to be restrained from trying to re-enter the building, which is erupting in flames. The fire department arrives, too late, and the girls die. It’s a tragedy.

The second “general perception” is the one started by the fire investigator, whose maxims include “Fire does not destroy evidence—it creates it," and “The fire tells the story. I am just the interpreter.” The investigator finds the evidence and interprets the story, and in this interpretation Willingham is found wanting and monstrous. Based upon the evidence, he could not have done the said the things he did...unless he started the thing. As a result, neighbors and ministers begin to change their stories. Maybe Willingham wasn’t as distraught as he seemed. Maybe he didn’t try to get back in the house until there were people there to restrain him. Maybe he protested too much. This is the story of a monster who rightfully winds up on death row.

The third “general perception” begins in 1999 when a woman named Elizabeth Gilbert volunteers to become a pen pal to someone on death row, and winds up with Cameron Todd Willingham. She listens to his story and doesn’t believe him. Then she begins to research the case. She wonders why neighbors and ministers changed their tune. She questions the mental state of the cellmate who claimed Willingham confessed the crime to him. She doubts Willingham received a fair trial. The case against him is still based upon strong evidence from the fire investigator but it’s beginning to unravel. This is a story full of ambiguity and doubt, which is where most of us live most of the time. What happened again in that one-story wood-frame house? What was the event?

The fourth and final “general perception” occurs when Dr. Gerald Hurst, a national fire investigator, looks at the evidence in the case and disagrees vehemently with the local fire investigator, whose interpretations, he says, are all wrong. Fire, after all, is a foreign language. It’s as if the original fire investigator, interpreting Mandarin Chinese, says “Szi means ‘death,’ and that’s why he’s guilty,” and then another interpreter comes along and says, “Wait. Don’t you know szi also means ‘four’? It’s completely innocuous. He’s not guilty at all.” But even though the evidence is found in time, and backed by other, prominent fire investigators, and presented to the powers-that-be in Texas, including Gov. Perry, Willingham is still executed by lethal injection in Feb. 2004. Our story is back to being a tragedy, but now it’s a double tragedy. The girls are killed by fire; the father is killed by us.